Citation Nr: 9932829
Decision Date: 11/22/99 Archive Date: 12/01/99
DOCKET NO. 98-13 967 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in White River
Junction, Vermont
THE ISSUE
Entitlement to service connection for Post-Traumatic Stress
Disorder (PTSD).
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. R. Steyn, Associate Counsel
INTRODUCTION
The veteran had active military service from August 1964 to
March 1968.
This appeal arises before the Board of Veterans' Appeals
(Board) from a July 1998 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in White River
Junction, Vermont, which denied the veteran's claim seeking
entitlement to service connection for Post-Traumatic Stress
Disorder (PTSD).
At the veteran's July 1999 hearing, his representative
emphasized that the veteran was only seeking entitlement to
service connection for PTSD, and that he was not seeking
service connection for any other psychiatric disorder (page
14).
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran's military records do not indicate engagement
in combat with the enemy or direct combat participation.
3. The veteran's alleged stressors are not corroborated by
credible evidence.
CONCLUSIONS OF LAW
PTSD was not incurred in or aggravated by the veteran's
active military service. 38 U.S.C.A. §§ 1110, 5107(a) (West
1991); 38 C.F.R. §§ 3.303, 3.304 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Background
Service medical records show that the veteran was diagnosed
in July 1966 with agitated depression. It was noted he was
in the 5th Comm Bn and came in wanting to see a medical
officer about personal problems. He was easily aggravated by
jibes from his peers. The veteran was hospitalized in August
1966 with acute situational reaction. The veteran verbalized
great resentment toward his peers because they were teasing
him about being Canadian. He was seen in September 1966
after having difficulty with his peers. He was having
nightly dreams about killing people. He was placed on
Thorazine. In November 1967, the veteran was diagnosed with
depressive reaction. In December 1967, the veteran was
diagnosed with incipient schizophrenia. The Physical
Evaluation Board recommended that the veteran be discharged
because of incipient schizophrenia.
Service personnel records show that the veteran served in
Vietnam from December 13, 1965 to August 1, 1967. The
veteran served in the Headquarters Company, 5th Comm.
Battalion while in Vietnam. The veteran's primary duties
were Supervisory Administrative Clerk, and Messman. The
veteran was discharged because of a physical disability.
The veteran submitted copies of letters he wrote to his
family in February and August 1966. In the letter from
February 1966, the veteran stated that it was raining, but
that other than that, everything was alright. He wrote that
he had been put in the reactionary squad, and that he would
be able to kill his first VC.
In the letter from August 1966, the veteran stated that he
was in the hospital and that he went berserk. The veteran
stated that he was a killer, and loved to kill and fight.
In a letter dated September 1966, the veteran's parents
thanked the Commandant of the Marine Corps for his comforting
letter about their son.
The veteran completed a PTSD questionnaire in February 1998.
He reported stressors of fright of being killed due to
constant over-head firing, not knowing who the enemy was,
shelling from enemy and explosion, friendly fire, deaths of a
nun and young children whom he had befriended, harassment
from his own people, body bags of friends in boot camp, drug
and alcohol use during watch, which gave him the feeling of
insecurity, snipers from an orphanage (the veteran clarified
that he saw an orphanage on fire), the smell of death, being
stationed where body bags came in, and seeing fellow soldiers
abuse younger girls.
Copies of VA Medical Center treatment records were submitted
from February 1998. The veteran was hospitalized from
February 2, 1998, to February 9, 1998. Diagnosis was PTSD,
and possible obsessive-compulsive personality disorder.
Frederick Lundell, MDCM., submitted a letter dated February
1998. He stated that he saw the veteran one time in November
1997. He stated that he could not give a diagnosis based on
the initial interview and that contact wit the veteran had
been terminated due to the doctor having a lengthy illness.
He related that the veteran described being pulled underwater
once by the current at Da Nang. He also described falling
out of a helicopter once and being saved by a safety belt.
He also indicated that he killed somebody with a bayonet.
There was no reference to psychiatric treatment in service.
In April 1998, the veteran submitted a statement providing
information about his alleged stressors. He described trying
to kill 2 recruits with his bare hands at Paris Island. He
stated that upon landing in DaNang, he was put on a truck to
be dropped off at various points, and that after 10 minutes,
2 women with bags full of snakes and a grenade threw them in
the back of the truck. He stated that the grenade did not go
off, but that the snakes were everywhere. He stated that the
corporal shot and killed the 2 women.
He stated that on 2 occasions, his gunny almost shot his head
off because he was drunk. He indicated that one night when
the alert went off, he noticed that the gunny was not there,
and he went to his tent, and saw that the gunny was on his
bunk drunk. He stated that he woke him up and carried him to
his bunker, and the gunny took out his gun and started
shooting. He described the second time when he was running
to the jeep, which the veteran was driving to go to a safe
area, and again the gunny shot, and the bullet hit the
windshield.
He described another incident where a 2nd lieutenant, during
an alert had a shotgun, and was running, and his shotgun went
off and hit the front of the bunker where the veteran was
standing. He described another incident where he was sent to
Chu-Lai for a week or so and was in a skirmish with the
enemy. He stated that he went through 4 clips. He stated
that when he came back from "Le Relais", he was put on
perimeter duty every night and told to shoot if he saw
anything. He stated that he saw 3 VC and shot one night. He
indicated that on 2 occasions, his own men fired on the camp,
because they were bored.
The veteran underwent a VA examination in April 1998. The
veteran stated that he sought outpatient psychiatric
beginning in October 1997. He reported that his MOS was in
supply, but that he found himself in combat situations, where
there were mortar shells incoming. He also reported that he
had to identify dead soldiers in bodybags and had to move and
transport the dead. The examiner commented that the
veteran's tour of duty ended when he was sent to the USS
Repose with what appeared to have been an acute stress
reaction. Diagnosis was PTSD, chronic, severe, and major
depressive disorder.
In May 1998, the RO sent the veteran a letter requesting more
information about his alleged stressors.
In June 1998, the veteran provided information about his
alleged stressors. He stated that on the day he arrived in
Vietnam in October 1966 while riding a truck to the Fifth
Communications battalion in DaNang, two Vietnamese women
threw a bag full of snakes and a grenade into the truck. He
stated that the grenade did not explode, but the sergeant
shot the two women, and said, "Welcome to Vietnam."
He stated that in January or February 1967, he was stationed
at DaNang Air Force Base, and for 3 days he was given the
duty of unloading body bags containing excess bodies from the
hospitals. He stated that many of the body bags were ripped
or not zipped.
He stated that on the day before Easter in 1967 (March 25?)
while stationed at DaNang Air Force Base, he was sitting
outside in a group watching a movie, when they came under
sniper fire. He stated that his gunnery sergeant was so
drunk that he had to pick him up to carry him behind the sand
bags. He stated that while carrying him over, the gunnery
sergeant's gun went off. He stated that this event affected
him deeply.
He stated that while stationed at the Fifth Communication
Battalion, he would go with 5 or 6 other soldiers to visit
children in an orphanage. He stated that he became close to
the children, and just before Christmas 1966, he was told
that two of the children that he had become close to had been
killed.
He stated that while at Parris Island in February 1968 while
working as a turn key in the prison, he overheard 2 recruits
in the parade square laughing and saying that they would not
go to Vietnam. He stated that he attacked them with his bare
hands, because they were laughing at those who had served in
Vietnam. He stated that the next thing he remembered was
being sent to Charleston Naval Hospital.
In July 1998, the Commandant of the Marine Corps wrote a
letter to the RO. The Commandant wrote that they had no
means to verify if the veteran actually participated in
combat. They indicated that the veteran's records showed
that his duty assigned was supply administrative clerk and he
was not awarded the Combat Action Ribbon. They indicated
that the veteran's duty assignment at Parris Island was a
Battalion Police NCO, and there was no indication that he
worked in the prison.
The veteran was afforded a video hearing before a member of
the Board in July 1999, a transcript of which has been
associated with the claims folder. He stated that his claim
was only for PTSD, and was specifically not for any other
psychiatric disorder (page 14). The veteran stated that he
was being seen at VA Medical Centers by Dr. King in
Burlington and by a therapist in Plattsburg. He stated that
the VA Medical Center in Burlington should have had all of
his records. (pages 11, 16). The veteran stated that he saw
Dr. Lundell around October 1996, but that the RO already had
those records (page 15).
Regarding the veteran's alleged stressors, it was noted that
he served 21 months in Vietnam. The veteran stated that he
was with the 5th Communication Battalion, Supplies in Da
Nang. His main function was to make sure everyone got the
equipment they needed. He stated that he often had to go
into a helicopter and bring communications equipment to
various bases in the jungle (page 4). He described being
fired upon by snipers (page 5). He described one sniper
attack when he was watching a movie on his birthday. He
stated that there were rocket and mortar attacks around the
compound in the Da Nang area, specifically on the other side
of the orphanage, and near the air and helicopter base.
(page 5). He stated that he had to unload bodies off of
helicopters (page 5).
He stated that when he returned from Vietnam, he went to
Paris Island. He stated that his job was to watch prisoners
break rocks. He stated that two recruits were reservists,
and were making fun of the people going to Vietnam. The
veteran stated that he got angry and started hitting them.
The veteran stated that he was hospitalized at the Charleston
Naval Hospital. (pages 7-8). During the hearing it was
asserted that Dr. Lundell advised that the veteran did not
have schizophrenia in service , but that he had PTSD. (page
10). The veteran testified that he was being treated for PTSD
and no other psychiatric disorder and that he had not been
diagnosed with any other psychiatric disorder. (Page 11).
In response to questions , he testified that he was not in a
combat unit, but had been in combat situations. It was
stated that the only evidence he had to verify his claimed
stressors were his lay statements.
Analysis
The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by active military service. 38 U.S.C.A. § 1110
(West 1991).
However, the preliminary requirement for establishing
entitlement to any VA benefit is that the applicant submit a
claim which is sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded.
38 U.S.C.A. § 5107(a) (West 1991). The United States Court
of Veterans Appeals (Court) has defined a well-grounded claim
as "a plausible claim, one which is meritorious on its own
or capable of substantiation." Such a claim need not be
conclusive, but only possible, to satisfy the initial burden
of § 5107. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
The Court has established a three pronged test to determine
whether a claim is well grounded. There must be competent
evidence of a current disability (medical diagnosis), of
incurrence or aggravation of a disease or injury in service
(lay or medical evidence), and of a nexus between the injury
or disease in service and the current disability (medical
evidence). See Rabideau v. Derwinski, 2 Vet.App. 141 (1992);
Grottveit v. Brown, 5 Vet.App. 92 (1993); Grivois v. Brown,
6 Vet.App. 136 (1994); Caluza v. Brown, 7 Vet.App. 498
(1995). To be well grounded, a claim must be supported by
evidence that suggests more than a purely speculative basis
for an award of benefits; medical evidence is required, not
just allegations. Tirpak v. Derwinski, 2 Vet.App. 609
(1992); Dixon v. Derwinski, 3 Vet.App. 261 (1992).
Claims for service connection for PTSD are evaluated in
accordance with the criteria set forth in 38 C.F.R. 3.304(f).
Amendments to those criteria became effective on March 7,
1997, prior to the filing of the veteran's appeal. See
Direct Service Connection (Post-Traumatic Stress Disorder),
64 Fed. Reg. 32,807 (1999) (to be codified at 38 C.F.R.
§ 3.304(f) (1999)).
While the RO applied the old rather than the new criteria,
the Board finds that the old and new criteria for evaluating
PTSD claims are substantially the same. Both versions of the
applicable regulation require medical evidence establishing a
diagnosis of the condition, credible supporting evidence that
the claimed inservice stressor occurred, and a link,
established by medical evidence, between current
symptomatology and the claimed inservice stressor. See
38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. at 138.
The new revisions serve primarily to codify the Court's
decision in Cohen, and bring 38 C.F.R. § 3.304(f) in line
with the governing statute, 38 U.S.C.A. § 1154(b), which
relaxes certain evidentiary requirements for PTSD claimants
who have combat-related stressors.
Under 38 U.S.C.A. § 1154(b), Cohen, and the new version of
38 C.F.R. § 3.304(f), if the evidence establishes that the
veteran engaged in combat with the enemy, or was a POW, and
the claimed stressor is related to combat or POW experiences,
in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed inservice
stressor. Where, however, VA determines that the veteran did
not engage in combat with the enemy, and was not a POW, or
the claimed stressor is not related to combat or POW
experiences, the veteran's lay statements, by themselves,
will not be enough to establish the occurrence of the alleged
stressor. Instead, the record must contain service records
or other credible evidence which corroborates the stressor.
38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f);
Gaines v. West, 11 Vet. App. 353, 357-58 (1998).
The Board finds that the new regulation has not changed the
applicable criteria in a way which could alter the outcome of
the veteran's claim. The revisions serve only to codify the
Court's decision in Cohen, and bring 38 C.F.R. § 3.304(f) in
line with the governing statute, as noted above. Therefore,
the veteran would not be prejudiced by the Board proceeding
to the merits of the claim. Indeed, a remand of this issue
would only result in needless delay and impose further
burdens on the RO, with no benefit flowing to the veteran.
The Court has held that such remands are to be avoided. See
Winters v. West, 12 Vet. App. 203 (1999) (en banc); Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6
Vet. App. 426, 430 (1994).
The threshold question in the veteran's claim for service
connection for PTSD is whether he has met his initial burden
of submitting evidence to show that his claim is well
grounded, meaning plausible. 38 U.S.C.A. § 5107(a); Murphy
v. Derwinski, 1 Vet. App. 78 (1990). If he has not done so,
there is no VA duty to assist him in developing the claim,
and the claim must be denied. Id.
The Board finds that the veteran's claim is "well-grounded"
within the meaning of 38 U.S.C.A. § 5107(a). That is, the
veteran has presented a claim which is not inherently
implausible. VA Medical Center treatment records show that
the veteran was diagnosed with PTSD in February 1998. A VA
examination from April 1998 also diagnosed the veteran with
PTSD, and the examiner said that the veteran's PTSD symptoms
were associated with inservice combat stressors. Having
found the veteran's claim to be well-grounded, the Board also
finds that no further assistance is required to comply with
the duty to assist mandated by 38 U.S.C.A. § 5107(a).
The Board next notes that according to his DD-214, the
veteran has not received the Purple Heart, Combat Infantryman
Badge, or similar combat citation indicating participation in
combat. The service personnel records show that the veteran
served in the Headquarters Company, 5th Comm. Battalion while
in Vietnam. His primary duties were Supervisory
Administrative Clerk, and Messman. The Marine Corps has
reported that they could not verify the veteran was in combat
and during his personal hearing he testified that he was not
in a combat unit.
The Board finds that the veteran did not engage in combat
with the enemy, therefore, it must next determine whether the
veteran's claimed stressor(s) are corroborated sufficiently
by service records or other sources to establish the
occurrence of the claimed stressful events. See Cohen v.
Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet.
App. 389, 394-95(1996); Doran v. Brown, 6 Vet. App. 283, 289-
90 (1994).
In May 1998, the RO requested more specific information from
the veteran about his alleged stressors, and in June 1998,
the veteran responded. He described an incident in October
1966 shortly after arriving in Vietnam involving a grenade
and two women being shot; unloading body bags in January or
February 1967; coming under sniper fire around Easter 1967;
children he knew from an orphanage dying around Christmas
1966; and an incident in February 1968 while he was working
at Parris Island in a prison.
The information that the veteran provided about his stressors
along with his service records were forwarded to the
Personnel Management Support Branch of the United States
Marine Corps in June 1998. In July 1998, the Marine Corps
stated that they had no means to verify if the veteran
actually participated in combat. They specifically wrote
that there was no indication that the veteran worked in the
prison while at Parris Island. The question of verification
of his claimed stressors was raised during his personal
hearing and it was related that he had only his lay
statements to support his claim.
The service records do not corroborate the veteran's
statements and the Marine Corps was also not able to verify
the veteran's alleged stressors. As such, the veteran's
claimed stressors have not been verified by competent
evidence.
While the veteran discussed general rocket and mortar attacks
at his July 1999 personal hearing (page 5), he has not
provided specific enough detail for the Marine Corps to
verify such alleged attacks. Rocket and mortar attacks were
a fairly common occurrence in Vietnam, and the veteran simply
has not provided specific dates and/or times of such attacks.
Similarly, the veteran provided information regarding other
stressors in earlier statements, but he did not describe such
stressors in further detail when the RO asked for more
specific information in May 1998.
The duty to assist is not always a one-way street. If the
veteran wants help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence. Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991). Further, if the
veteran does not reveal the alleged stressors, together with
the dates and places, there is no way to corroborate, or even
attempt to corroborate, the information. Swann v. Brown, 5
Vet. App. 229, 233 (1993). The service records do not
corroborate the veteran's statements, and the veteran has not
supplied the necessary details to verify that any stressor
events took place.
As noted in the introduction, the veteran contends that he is
only seeking service connection for PTSD, and not for any
other psychiatric disorder. The Board notes that the service
medical records show that the veteran was treated and
hospitalized for various psychiatric complaints (agitated
depression, acute situational reaction, depressive reaction,
and incipient schizophrenia), and that it was recommended
that he be discharged because of incipient schizophrenia.
However, such records do not address the central weakness in
the veteran's claim of service connection for PTSD; that is,
such records do not address the question of verification of
stressors. Such service medical records would surely be more
relevant were the veteran claiming service connection for a
psychiatric disability other than PTSD. However, as noted,
the veteran is limiting his claim to service connection for
PTSD. In addition, no medical evidence has been presented
linking his PTSD to psychiatric manifestations from service.
While the veteran testified that Dr. Lundell linked his
current diagnosis to his psychiatric complaints in service,
we find that the actual letter from this physician does not
substantiate that assertion. Indeed, Dr. Lundell reported in
February 1998, that he saw the veteran once in November 1997
and that on the basis of his initial interview he was unable
to give an opinion of the diagnosis.
The letters that the veteran wrote to his parents while in
service are similar, in that they address the question of the
veteran's psychiatric state, but that they do not supply
additional information to help verify the veteran's
stressors.
In summary, the veteran was diagnosed as having PTSD decades
after service, and the diagnosis was based on the veteran's
uncorroborated accounts of traumatic events during service.
The RO has attempted to obtain additional information from
the veteran in order to verify the alleged stressors.
However, the veteran has not responded to the RO's request
for more information regarding the stressors with enough
specificity so that the alleged stressors could possibly be
verified.
Thus, the Board finds that the veteran did not engage in
combat with the enemy and his accounts of alleged stressful
events in service are not corroborated by the service records
or any other source. See Cohen, 10 Vet. App. 128, 147
(1997); Moreau, 9 Vet. App. 389, 394-95 (1996); Doran, 6 Vet.
App. 283, 289-90 (1994); 38 C.F.R. § 3.304(f). In light of
the foregoing, the Board concludes that the preponderance of
the evidence is against the veteran's claim for service
connection for PTSD. 38 U.S.C.A. §§ 1110, 5107(a); 38 C.F.R.
§§ 3.303, 3.304.
ORDER
Entitlement to service connection for PTSD is denied.
STEVEN L. COHN
Member, Board of Veterans' Appeals